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Lethal Injustice

Since he took office in January 1995, George W. Bush has presided over more than 120 executions, accounting for more than a third of the executions in the nation at large during that time. Bush is not, of course, entirely responsible for this astonishing record, and he typically dismisses any questions about it by noting that he was sworn to uphold Texas laws. Nevertheless, there are 38 death penalty states, and none seems to go about the execution process with anything near the charnel house zeal one finds in Texas. Indeed, if all of them had executed death row inmates at the Texas rate, there would have been an execution every other day, a total of 834 during Bush's five-year tenure.

Yet however remarkable the Texas statistics, what is even more important is the way Bush has handled these executions and what that says about his leadership, his broader notion of justice and due process, and his embrace of what is arguably the most inequitable state justice system in the nation.

Executing the Innocent

Bush's support for the death penalty, a sine qua non of elective office in Texas, is unambiguous. In his first campaign for governor in 1994, he ruthlessly exploited the issue, attacking Democratic incumbent Ann Richards for not executing enough death row inmates and not executing them quickly enough, even though she ended up presiding over 50 executions, far and away the highest number of any Texas governor since the reinstatement of the death penalty there. Since taking office, Bush has not had an unkind word to say about the Texas death penalty. "I like the law the way it is right now," he said, objecting to the Texas senate's passage of a bill to bar executions of people who are mentally ill.

When it comes to carrying out death sentences, Bush believes faster is better. "We're a death penalty state. We believe in swift and sure punishment," he has said on several occasions. Shortly after taking office, he championed and signed legislation to reduce the time between conviction and execution from an average of nine years to seven or less, despite overwhelming evidence that speeding up the process is likely to result in innocent people being put to death. Had this law been in effect over the past dozen years, at least seven innocent men would have probably been executed in Texas. We know that because seven innocent men were released from Texas's death row during that time, all of whom had spent at least seven years on the row. One, released under Bush, spent 15 years there and came within three days of being executed.

Of course Texas is not alone in sentencing innocent people to death. Nationwide, 85 innocent people have been freed from death row since the Supreme Court reinstated capital punishment in 1976. No one knows how many remain--or how many innocent people may have been executed. On January 31, Bush's Illinois campaign chairman, Governor George Ryan, declared an indefinite moratorium on executions in his state, which has released 13 innocent men from death row. Citing what he called the state's "shameful record of convicting innocent people," Ryan, a Republican and a champion of the death penalty, said, "I cannot support a system, which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life." One of those released, Anthony Porter, spent 16 years on death row and came within 48 hours of being executed. "How do you prevent another Anthony Porter?" Ryan asked in announcing the freeze on executions. "Today, I cannot answer that question."

In his autobiography, A Charge to Keep, Governor Bush writes, "The worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man." Yet it's impossible to square that concern with his zest for faster executions or his decision to sign off on the 1997 execution of, for example, David Spence, who had a compelling claim of innocence.

Bush insists that no innocent person has been executed since he took office. But how does he know that? He signed off on the Spence execution without comment and, unlike his friend Ryan, seems to see no problem in the discovery of innocent men on the Texas death row. Nevertheless, he wants Americans to believe he's not just rubber-stamping executions--"I take every death penalty case seriously and review each case carefully." But his seriousness was called into question in an interview with Talk magazine, when he mimicked Karla Faye Tucker--the first woman to be executed in Texas in more than 100 years--as she pleaded with him for her life.

In A Charge to Keep, he assumes a more appropriately somber tone, insisting that he views the execution process as "an awesome responsibility." But the record suggests Bush is far less assiduous about his role in the execution process than he would have us believe.

For one thing, it is difficult to imagine how Bush has found the time to review more than 120 death sentences. In principle there may seem to be little difference between supporting one death sentence and supporting 120--but as a practical matter, as the number of executions rises, it becomes increasingly problematic for a governor to claim he is "seriously" reviewing any of them.

Death penalty cases and clemency appeals can be extraordinarily complex. Understanding their nuances is not something one does in the half-hour Bush's former legal counsel, Al Gonzales, says the governor would typically spend on each one. Indeed, if clemency review is purposefully pursued, it may require an examination of the facts in a case going all the way back to the time of arrest, including whether the defendant had adequate representation before and at trial, and how the courts addressed various appeals--not to mention issues of police and prosecutorial misconduct, all of which have been factors in clemency applications that have landed on Bush's desk.

The two death penalty cases Bush refers to in his book are the ones that have given him the most political trouble: the highly publicized execution of Karla Faye Tucker and the one death sentence he commuted to life in prison, that of Henry Lee Lucas. Lucas is a confessed serial killer whom the state of Texas sought to execute for a crime he didn't commit. Bush cites his case as evidence of the governor's ability to make difficult choices and his rigid adherence to principle in making clemency decisions. But Lucas was not even a close call for clemency; a decision to let him die for a crime he didn't commit would have probably doomed Bush's presidential aspirations. By the time the case landed on the governor's desk, the Texas attorney general had overwhelming evidence that Lucas could not have committed the crime. Indeed, Bush suggests that his Democratic opponent's criticism of the governor's decision to commute Lucas's sentence showed a "disregard for the law and the facts."

Karla Tucker, who was 38 at the time of her execution, had confessed to the brutal 1983 pickax murders of two people and subsequently became the "baby seal" of death row, the soft and cuddly born-again Christian who melted the hearts of such inveterate death penalty advocates as Pat Robertson and Jerry Falwell. Bush says Tucker "put a face on the death penalty, for me and for much of the nation and the world"--a somewhat astonishing remark given the fact that, by the time Tucker was executed, Bush had already presided over 59 other lethal injections. Does Bush really mean to say that not one of these 59 men had touched him in any way with his humanity, and that not one issue in any of these cases troubled him or tweaked his curiosity?

Bush wants voters to believe that his handling of Tucker's case was typical of the careful attention he gives to all executions. We learn in A Charge to Keep that he had a "restless night" before the execution, "felt like a huge piece of concrete was crushing me" as he waited for Tucker to die, read a postmortem statement to the press which was "one of the hardest things I have ever done," and came away from the whole experience "heavy of heart." Yet the only evidence he claims really moved him in the case was an interview with Tucker by Larry King, which Bush says "affected me more than I wanted to admit." Bush also notes, however, that he actually saw only part of the interview. Why, if he was so "affected," didn't he bother to watch the whole thing? King's interview aired three weeks before the execution. It wasn't exactly unavailable.

Texas-Style Justice

In considering clemency, Bush claims he examines not only whether the condemned may be innocent (as was the case with Lucas), but whether he or she had adequate access to the courts and due process. However, the fact that Bush has yet to find a single due-process issue that troubled him--none is mentioned in A Charge to Keep--out of more than 120 death sentences, suggests he may not fully understand the concept. On February 24, Bush signed off on the execution of Betty Lou Beets, a 62-year-old grandmother who was convicted of murdering her fifth husband in 1983. Although there was little question that Beets killed the man, her representation at trial was a fiasco. Beets's attorney, E. Ray Andrews (who subsequently served three years for extorting a bribe in another murder case), deliberately withheld evidence that would have made it virtually impossible for a jury to rule for a death sentence. To impose death, the state had to prove that Beets killed her husband to collect a $100,000 insurance and pension policy. But Andrews knew Beets was unaware of the policy until a year after her husband's death because the attorney himself informed her about it. Had Andrews behaved ethically, he would have testified about what he knew. He didn't because he'd obtained the literary and movie rights to Beets's life story in exchange for representing her, and would have lost those rights had he withdrawn as counsel. Andrews also failed to present mitigating evidence concerning Beets's lifelong history of physical and sexual abuse, which might have convinced jurors that death was an inappropriate penalty. Bush issued a brief statement saying he was confident that Beets was guilty and that the courts had "thoroughly reviewed all issues raised by the defendant."

In another equally egregious due-process case, Bush signed off on the execution of Joseph Stanley Faulder, a Canadian who was convicted of murdering a wealthy oil heiress in 1977, despite the fact that the prosecutor had been hired and paid for by the victim's family, an unseemly and almost surreal practice tolerated under Texas law, and that the state had withheld evidence that its chief witness had been paid more than $10,000 to testify. The state's chief psychiatric witness, whose testimony was essential to securing a death sentence, was later expelled from the American Psychiatric Association for presenting unprofessional testimony in Texas death penalty cases. In addition, Secretary of State Madeline Albright had asked Bush to consider commutation because Faulder had been incarcerated in violation of international law. Faulder was executed last year. What lesson did Bush glean from this multiplicity of due-process violations? "People can't just come in our state and cold-blood murder somebody."

Under Texas law, the governor has no authority to grant clemency to a condemned murderer on his own. He must first have a recommendation from the Texas Board of Pardons and Paroles, whose 18 members are appointed in staggered six-year terms by the governor. Bush uses this legalism to put some distance between himself and the executioner's needle. Thus, he writes, "Despite the call being sounded around the country and world, I could not convert Karla Faye Tucker's sentence from death to life in prison."

Although that's technically true--without the board's recommendation, Bush can only grant a 30-day reprieve--Bush has considerable influence over the fate of the condemned if he chooses to exercise it. At the time of Tucker's execution, two-thirds of the board members were Bush appointees. Today, all of them are.

Bush's authority to grant a 30-day reprieve for any reason he sees fit is hardly as insignificant as the governor would like people to believe. Although Bush never talks about it, he also has the power to order the board to conduct an investigation where there is a question of innocence, a denial of due process, or any other matter that concerns him. He can instruct the board to hold a hearing or listen to the appeal of a death row inmate. He can tell the board that he wants it to reconsider a negative recommendation on clemency. Given the political makeup of the board, a 30-day reprieve under any of these circumstances could very well lead to a reversal of the panel's earlier recommendation. As the Lucas case made clear, Bush has the power to alter a death sentence if he wants to. When the attorney general told him the state was about to execute Lucas for a crime he didn't commit, the governor let the board know he wanted to commute, and the board delivered the recommendation.

So far, Bush's supposedly independent review of death sentences has tracked the recommendations of the Texas Board of Pardons and Paroles 100 percent of the time. That's not entirely surprising given that members of the board are not only his appointees, but also include prominent party regulars and at least three contributors to his presidential campaign. Bush, however, doesn't just rely on the board; he virtually abdicates to it. "I know that I cannot possibly know all the information necessary to make good decisions about all the matters that come before different agencies, boards and commissions," Bush writes, referring to the Board of Pardons and Paroles. "I select people who are qualified, who share my conservative philosophy and approach to government, and then I expect them to make the calls as they see them."

What exactly is this 18-member board in which the governor invests so much faith? The transcript of a 1998 civil lawsuit, brought by Stanley Faulder, who said the Board of Pardons and Paroles had violated his due-process rights, suggests that the board is a Potemkin village, its proceedings little more than a charade. The testimony, before U.S. District Judge Sam Sparks in Austin, revealed that the board had never held a hearing on a death row clemency appeal nor conducted a single meeting among its members--not even a telephone conference call--nor investigated a single case. "It is incredible testimony to me," Judge Sparks opined during the proceedings, "that in 70-plus cases [the board had considered since 1973], in an 18-member board, that no person has ever seen an application for clemency important enough to hold a hearing on or to talk with each other about."

The hearings also revealed that board members sometimes cast their votes on clemency matters without even reviewing case files, without reading correspondence the board's own procedures require its members to read (in Faulder's case, they didn't read any of the more than 4,000 letters appealing for clemency), and without providing Governor Bush any reason or explanation for denying clemency. According to Judge Sparks, "There is nothing, absolutely nothing that the Board of Pardons and Paroles does where any member of the public, including the governor, can find out why they did this. I find that appalling."

Bush doesn't. He has wholeheartedly endorsed the Board of Pardons and Paroles and has opposed even the most modest reform of its procedures, such as opening board meetings to public scrutiny. That would be unwise, Bush says, because it would only provide "a chance for people to rant and rail, a chance for people to emotionalize the process beyond the questions that need to be asked." The questions that need to be asked in matters of life and death, for Bush, appear to be very few indeed.

Cheap Defense

One of the best ways of ensuring that questions are kept to a minimum is to provide indigent defendants (80 percent of all criminal defendants are indigent) with lousy lawyers--or no lawyers at all. In some Texas counties, indigents charged in criminal matters have had to wait weeks or even months to have an attorney assigned. But when the Texas legislature unanimously approved a bill last year to require appointment of counsel within 20 days--even though most states provide lawyers within 72 hours--Bush vetoed the measure, arguing that it would pose a threat to public safety because defendants who were not given lawyers in 20 days would have to be set free.

Even when they get lawyers, the quality of representation in Texas is often abysmal. David Dow, a professor of law at the University of Houston, says state standards of competency allow "inept" and wholly unqualified lawyers to handle murder cases. "The standards do nothing about the fact that the lawyers who tend to drift toward these cases tend to be the worst lawyers in America," Dow says. "They are dreadful. They lack the necessary legal skills and they don't care much about the outcome."

A second feature of the indigent defense bill Bush didn't like would have allowed independent county authorities to assign attorneys to indigents, which threatened the current system in which judges appoint the lawyers and the lawyers reciprocate, first, by making campaign contributions to the judges and, second, by placing the judges' needs ahead of their clients'. In practice this often means that lawyers fail to demand court resources for expert witnesses and investigators and that they try to help judges keep court dockets clear by not filing motions, not requesting hearings, and not bringing cases to trial.

Bush said he vetoed the bill because judges are "better able to assess the quality of legal representation." But Texas judges' own assessment of indigent representation in their state turns out to be pretty grim. In a survey conducted for the State Bar of Texas and released last year, 26 percent of the judges said court-assigned indigent defense attorneys don't have the investigators or the forensic, mental health, and other expert assistance they need to properly defend their clients. Fully 87 percent of the judges said attorneys spend less time representing indigent clients than they do working for those who pay them directly; 72 percent said court-assigned counsel are less prepared than retained attorneys; and 66 percent said lawyers selected by judges put on a less vigorous defense. Half said they believe campaign contributions from attorneys are a factor judges consider in deciding which attorneys get assigned to cases. That these judges nonetheless allow such ill-equipped and conflicted lawyers to practice in their courtrooms should subject both judges and lawyers to disciplinary action by the bar and is a further measure of the state's thoroughgoing lack of commitment to even minimal due process.

All this lousy lawyering has a significant impact. A study done for the Texas Judicial Council in the mid-1980s found that a defendant's chances of being convicted of murder in the state were 28 percent higher if his or her attorney was court-assigned. The same study also found that 55 percent of those who retained their own counsel but 79 percent of those with appointed counsel were sentenced to death. A report in the Houston Chronicle last October found that defendants with court-assigned lawyers in first-offense cocaine possession cases were more than twice as likely to end up in jail or prison as those who hired their own attorneys.

No one knows exactly how much it would cost to finance competent lawyers for the poor, but Texans have shown no interest in finding out. Bush recently told Tim Russert on NBC's Meet the Press, "I'm for public defenders." But he's not. The indigent defense bill he vetoed would have encouraged the creation of more public defender offices, which are widely acknowledged to provide better legal representation than the court-appointed attorneys Bush favors. Only three Texas counties out of 254 currently have public defenders. Bush prefers the status quo, which provides justice on the cheap by leaving financing for indigent defense almost entirely to county governments, some of which pay lawyers as little as $150 to handle a felony case. (Of the $153 million in federal assistance for criminal-justice programs appropriated to Texas since Bush took office, not one penny has been used for indigent defense.)

Bush told Meet the Press he would not declare a moratorium on the death penalty as Governor Ryan had done in Illinois because "every case that has come across my desk--I'm confident of the guilt of the person who committed the crime." Yet Bush's confidence rests on a criminal-justice system that is fatally flawed from the appointment of incompetent lawyers through the clemency review process. It is a system that annually provides tens of thousands of poor Texans only the barest semblance of justice.

Following the execution of Karla Faye Tucker, Bush told a crowded press conference, "My responsibility is to ensure that our laws are enforced fairly and evenly without preference or special treatment." He then went on to say that he'd denied Tucker's clemency appeal, based on her claim to have been rehabilitated, because "I have concluded judgments about the heart and soul of an individual on death row are best left to a higher authority." The next time Bush says his job is to see that Texas laws are "enforced fairly and evenly," someone might want to ask him whether he hasn't also left that job to some higher authority. ¤